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Monday, September 17, 2012

Bill C-7, Senate Reform in Canada, and the Constitution

The Senate has always been a little bit controversial in Canada.

The news now is that Harper is planning to bring a Supreme Court Reference regarding his most recent plans for Senate Reform, Bill C-7.

Background: What's this whole "Senate" thing, anyways?

The Senate is part of the Federal Parliament, and is technically very similar to the House of Commons in terms of its role in the legislative process. All bills, before becoming law, must be passed by the Senate. Technically, therefore, the Senate has a veto on any legislation passed by the House of Commons.

Essentially, its members are appointed for life terms by the Prime Minister (well, the Governor General, but on the Prime Minister's advice). It is highly undemocratic, and patronage appointments are pretty much par for the course. As a result, there isn't much appetite in the public sphere for the Senate to exercise its power, so the Senate has generally maintained a very limited role - it may delay legislation, but it never - er, almost never - actually rejects a statute that has passed the House of Commons. Thus, it serves as a "sober second thought", and retains vestigial powers of an age long past, with minimal impact on actual Canadian governance. Kind of like the Monarchy.

Prime Minister Harper has long been a critic of this status quo. He believes that we should have a 'triple-E' Senate (Effective, Elected, Equal), like the U.S. The undemocratic nature of the Senate was something he criticized significantly while in opposition, and since becoming Prime Minister he has floated a number of Senate reform ideas. Of course, in the mean time, he has continued the tradition of making patronage appointments to the Senate, achieving a Conservative majority in that house. The Senate made major headlines in late 2010 when it killed Bill C-311, a climate change bill which had made it through the House of Commons despite being opposed by Harper's minority government. This was unprecedented, but the Conservative government - unable to openly laud the Senate - deflected blame to the opposition for not supporting their earlier Senate reform efforts, including the Minister of State (Democratic Reform) writing letters to the editors of major news media to that effect.

An NDP MP, Bruce Hyer, claimed that he had been told by Conservative Senators that the order to kill Bill C-311 had come from the Prime Minister's office. While the PMO technically has no power over the Senate - there is no mechanism for holding a rogue Senator accountable - it is not beyond imagination that he would have some influence there, having appointed a majority of the current Senators himself. It also bears noting that it is not uncommon for a Senator to resign to run for another office (i.e. the House of Commons) and then to be re-appointed to the Senate if unsuccessful.

Now that Harper has his majority, and he can finally implement the Senate reform that the opposition held up for so long, right?

Well, maybe not.

What's So Hard About Senate Reform?
Enter constitutional considerations. Much of the structure of the Senate was defined constitutionally in the Constitution Act, 1867. In 1982, the Trudeau government 'patriated' the Constitution - brought it home and amended it, rather than leaving it with the British Parliament as had historically been the case, and the new constitution came with an amendment formula.

To amend the constitution, there are a number of amendment formulas in the constitution itself: The general formula requires that the amendment pass the House of Commons and the Senate, and at least 7 of the Provincial legislatures with at least 50% the national population (the "7/50" formula). A referendum is not expressly required, but would be conventional. (For those who are curious, no, it is not strictly necessary that the Senators vote themselves out of their jobs - there is a proviso in the amendment formula permitting the House of Commons to vote on the matter again, at least 180 days after the first vote, and to bypass the Senate entirely if they haven't passed it. Sober second thought, remember?)

The 7/50 formula has proven to be a high threshold. Amendments made it through in 1983 regarding aboriginal rights, but the Meech Lake and Charlottetown accords crashed and burned catastrophically, and in general it has been widely accepted since then that constitutional reform will require a consensus which is virtually impossible to achieve. Before Quebec will agree to any amendment, not having consented to the 1982 patriation in the first place, it will require an amendment to address other Quebec concerns. And Quebec isn't alone. Every Province will have conditions, turning simple negotiations into a monstrous negotiation of how to define the country altogether.

Minor sidebar: On the up side, our constitution isn't interpreted as a stagnant creature in the way that the U.S. constitution is - the U.S. Courts look to the intentions of the founding fathers, and thus end up getting tied up with 18th-century notions of governance and social values. We used to go that way - in the "Persons" case in the 1920s (querying whether or not a woman is a "person" for the purpose of eligibility to serve on the Senate), the Supreme Court of Canada concluded that the drafters of the Canadian constitution considered the answer to be No. Fortunately, in those days there was an appeal to the Judicial Committee of the Privy Council (i.e. the British House of Lords), and they reversed the decision in October 1929, famously characterizing the Canadian constitution as a "living tree" - a metaphor which continues to arise in the jurisprudence to this day.

In order to meaningfully change the Senate, therefore, two things are required: Elections, and term limits. (They need to be appointed by the people, and to periodically account to their constituents.) Elections may not strictly require constitutional reform - nothing in the constitution dictates how the Prime Minister must appoint Senators, so there's no reason why the Prime Minister couldn't say "Let's have an election" and exercise his powers of appointment in accordance with the will of the electorate. A little bit informal and non-binding, and it has been tried with some effect, but my real problem is that, without term limits, it's a half-measure. And there is simply no way to impose term limits without constitutional reform, as the constitution expressly gives Senators job security up to age 75, unless they resign or are otherwise disqualified for specific reasons set out in the constitution.

Term limits, therefore, will require constitutional reform. And Bill C-7 does purport to amend the Constitution. So the next question is this: Does the 7/50 formula need to be satisfied?

Getting Even Deeper Into The Mess

The Federal government argues No, that the amendment falls within the scope of s.44 of the Constitution Act, 1982, which permits Parliament to amend the Constitution "in relation to the executive government of Canada or the Senate and the House of Commons."

I'll concede that it is less than obvious to me what this means. But this isn't the first time the Supreme Court has been asked this question: In 1979, in the Upper House Reference, the Supreme Court interpreted similar language and concluded that "it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process" without getting approval of the Provinces.

In carrying out the analysis, the Court looked at the fact that the Senate is essentially modelled on the House of Lords, and concluded that making the Senate wholly or partially elected would change its fundamental features. Indeed, this is expressly reflected in the language of the constitution: You can only change the "powers of the Senate and the method of selecting Senators" by using the 7/50 formula. The same express language applies to changes to regional representation. This is important, and I'll come back to it later.

But Bill C-7 doesn't run awry there. The method of selecting Senators - i.e. by appointment - isn't being changed. It creates an election process by which candidates are proposed for appointment. So, technically, it's still probably okay there. The central question remains: What about term limits?

There is a cogent argument to be made that term limits may change the fundamental features of the Senate: The House of Lords follows something of an 'independence model' like the judiciary itself - not elected, not subject to any external authority. A Senator can vote his conscience, because he can't be removed, and this renders him immune to external political pressures. Under the 1979 interpretation, I'd probably be inclined to bet on that argument. Term limits - with or without elections - subject Senators to influence by the popular ideas of the moment, fundamentally shifting it away from the House of Lords model. However, in 2012, I'm not so confident that the 'unaccountable' nature of the House of Lords will be a very persuasive model to the Supreme Court.

So the ultimate answer to the "term limits" question is maybe.

Assuming we *can*, does that mean we *should*?
First of all, let me be clear that I have a bit of an 'all or nothing' attitude towards Senate reform. Without elections, term limits would be absolutely awful. Without term limits, elections would be dangerous. Either one would serve to improve the optics of the Senate to the point that the Senate may feel empowered to start exercising real power more often, but neither one, alone, would make the Senate truly accountable.

Bill C-7 proposes 9-year terms. It is easy to imagine a scenario, therefore, where one party dominates the Senate, and the other party dominates the House of Commons. Consent of both houses is needed to any proposed law, and we all know how well the parties get along now.

This will make our overall system much closer to that of the U.S. Their Senators are elected for 6-year terms. Their House of Representatives is fully up for re-election every two years. And the President, of course, every 4. They call it "checks and balances", but it is often criticized from abroad as creating stalemates. A new law may originate in a Democrat-dominated House, and have to pass a Republican-dominated Senate, and still have to get through the Presidential veto of whatever party the President of the day might be.

Whether or not we want two equal houses is a very significant question. What is the point, from a democratic perspective? The "House of Lords" model means it should be insulated from the opinions of the masses, but...well, for all of democracy's flaws, I would rather a government which is more accountable to the people, not less.

But there's a further hitch: Regional representation. Of the 105 Senators, Ontario and Quebec each have 24 (incidentally putting Ontario and Quebec, respectively, as the third and fourth LEAST represented Provinces by population), Nova Scotia and New Brunswick each have 10, PEI has 4, the Territories each have 1, and every other Province (being everything west of Ontario, and Newfoundland) each have 6.

Break it down by population, and it starkly favours the East. New Brunswick, with only about 750,000 people, has 10 Senators. B.C., with more than 4.5 million, and Alberta, with just under 4 million, each have 6.

Hard to understand, really. In the U.S., regional representation is kind of the raison d'etre of the second House - ensuring that Wyoming's half million have an equal voice in one house to California's 37 million - but the distribution in the Canadian Senate just seems skewed. And remember, this can't be changed without satisfying the 7/50 formula.

Stephane Dion has made some potent criticisms of Bill C-7, feeling firstly that the legislative gridlock we often see south of the border is not something we should model in Canada. Secondly, he points out the representation problem. Ontario being underrepresented by population isn't necessarily a problem (there is, perhaps, a certain logic to it), but this would heavily exacerbate problems of Western alienation. One would think that this would concern Harper, who has himself appeared to flirt with Alberta separatism. But Dion points out that Harper stated in 2006 that his Senate reform goal was to "force the provinces and others to, at some point in the future, seriously address other questions (...) such as the distribution of seats...."

Makes sense. Senate reform will actually threaten national unity until and unless we can come together and make a 7/50 amendment happen.

This is another part of what I mean when I say that I'm 'all or nothing'. It doesn't make sense to me to implement Senate reform to the extent that we can without doing it all the way, the way we want. Without fixing the representation problem, any power the Upper House achieves will be at the expense of national unity, and so we can't really say that we gain any benefits by a triple-E Senate.

Quite frankly, I don't so much mind the status quo, Bill C-311 fiasco aside, but I think that if there's a reform to be made, abolition would be the way to go. We've done okay with just one House, and the disadvantages of a second House are not insignificant.